21 A. 1002 (Pa. 1891), 240, Bacon v. Delaware Etc. R. Co.
| Judge | Before PAXSON, C.J., STERRETT, GREEN, CLARK and WILLIAMS, JJ. |
| Parties | LENA BACON v. DELAWARE ETC. R. CO |
| Citation | 143 Pa. 14,21 A. 1002 |
| Date | 27 May 1891 |
| Court | Pennsylvania Supreme Court |
| Docket Number | 240 |
Page 1002
Argued: April 16, 1891
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.
No. 240 January Term 1891, Sup. Ct.; court below, No. 192 February Term 1887, C.P.
On Juanuary 28, 1887, Lena Bacon brought trespass against the Delaware, Lackawanna & Western Railroad Company, to recover damages for the death of the plaintiff's husband. The statement of claim filed averred, inter alia;
That on October 12, 1886, the defendant company was the owner, and was in possession and use of a certain railroad, locomotive-engine, cars, station, and passenger platform at the village of Nicholson, Wyoming county, all which were under the charge, government and direction of servants of the defendant, "who were then and there driving and propelling the said locomotive-engine and cars along and upon the said railroad at the said station and platform;" that the defendant negligently maintained the said platform, so that it was in certain places full of holes and defective and unsafe for persons to walk upon; "that through the mere carelessness, negligence and improper conduct of the said defendant, the plaintiff's husband, Arthur Bacon, being lawfully upon the said platform at said station, as a passenger on the cars of said defendant, and while in the act of walking upon said platform for the purpose of getting on the cars of said defendant, in the nighttime, his foot sank into a hole in the said platform, thereby causing him to be throw with force against and under the moving train of cars at the platform and station aforesaid, by means whereof the said Arthur Bacon, plaintiff's husband, was greatly bruised, hurt and wounded, so that afterwards, to wit, on the twelfth day of October, 1886, at the county aforesaid, he died of said wounds;" etc. The defendant pleaded not guilty.
At the trial on June 13, 1890, the following facts were shown:
On October 12, 1889, an excursion party went from Scranton to Hiawatha Island, N.Y., under the auspices of a lodge of the Junior Order of United American Mechanics, returning the same evening. Both going and returning, the cars occupied by the execursionists were attached to a regular passenger train on the defendant company's railroad. The plaintiff's husband, Arthur Bacon, residing at Scranton, fromed one of the party, having purchased an excursion ticket through the committee of the lodge in management of the excursion.
On the return trip, the train reached Nicholson, one of its regular stopping places, about 7.23 P.M. At that place, the conductor was informed that the pump of the locomotive was out of order, and that it would be necessary to get the assistance of another engine to move the train to Scranton. He reported this by telegraph to the proper officer, and asked for the necessary order. While the order was awaited, the train stood on the track in front of the station, and the plaintiff and other passengers got off and passed the time upon the platform. Orders having come to use a freight engine, the train was backed up some distance above the station, where the freight engine was attached to it. It then started on its way. While it was moving past the station at the rate of from three to four miles an hour, according to the testimony for the plaintiff, or four to five miles an hour, according to the testimony for the defendant, Bacon, who until that time had remained standing on the platform, talking with some friends, walked rapidly across the platform toward the train, and when close to it he fell forward against the end of one of the cars and then under the car. Both his legs were cut off by the car wheels, and he died that night from the wounds thus received.
The plaintiff called two witnesses who described the accident. Their testimony, parts of which are quoted in the opinion of the Supreme Court, infra, tended to show that Bacon's fall was occasioned by his catching his foot in a hole close to the edge of the station platform, left unrepaired for for months, and that at the instant of falling he was facing the train and was about opposite the platform of one of the cars. Each of these witnesses said that he did not know whether the deceased was trying to get on the train or not. For the defendant, a number of witnesses testified that Bacon was in the act of attempting to get on the cars when he fell. Several witnesses testified for the defendant that, before the train was backed away from the station, the conductor gave warning to the passengers to get on by calling out "all aboard" twice; one of them testifying, further, that the conductor called out also that the train would not stop at the station as it came back, and that the witness thereupon warned the deceased to get on board before it started, to which the deceased replied that he was used to jumping trains. This testimony was not contradicted, though one of plaintiff's witnesses testified that he did not hear the conductor cry "all aboard." There was some evidence also that the deceased appeared to be partly intoxicated, and evidence to the contrary in rebuttal.
At the close of the testimony, the court, WOODWARD, J., charged the jury as follows:
This action is for alleged negligence resulting in accident and death, and is brought by the legal representative, the widow of the deceased.
To recover damages in this case, it was necessary for the plaintiff to show, first, that the defendant was guilty of negligence which caused the accident resulting in the death of the deceased; and [secondly, the court must be satisfied from the evidence, that if the negligence of the company has been established, it has not been shown that negligence of the deceased concurred with that of the company in producing the result. Or, to put it in a different form, if the judge trying a case, after a careful examination of all of the evidence submitted, is satisfied that this evidence establishes the fact of concurring negligence at the time of the disaster, on the part of the person injured, then it is his duty to take the responsibility of saying, under the rules of the law, there can be no recovery.]
Now, we have examined this case with these legal rules in view, and our examination results in this:
1. The declaration in this case alleges negligence on the part of the defendant company; also, that the deceased was upon the platform at the company's depot, with the intention of boarding the cars.
[2. The evidence shows that the deceased was injured while making an effort to board the train of cars while it was in motion.]
[3. The evidence also shows that the deceased, while making an effort to board the train in motion, was distinctly warned of the danger of so doing, but insisted on making the effort, notwithstanding the warning.]
A thorough analysis of the evidence in the case compels us to say that these three statements are a fair deduction from the undisputed facts, and it therefore becomes our duty to affirm the third point of the defendant, which reads as follows:
3. Under the undisputed testimony of the plaintiff, it having been shown that the decedent purchased a ticket for the excursion from Scranton to Hiawatha Island and return, that he was a passenger on the train returning to Scranton, and that he got out of the train at Nicholson, an intermediate station, of his own volition, and attempted to get on the train again when it was in motion, he was of his own action guilty of contributory negligence, and the verdict must be for the defendant.
Answer: In affirming this point, we say, after examining the law, we find it to be the general rule, leaving out of view extreme cases and emergencies, that the attempt to board a train in motion, is negligence; and we see nothing in the present case to take it out of the effect of this general rule. It is therefore our duty, on this question of contributory negligence, to affirm the third point of the defendant; and this results in our being obliged to say to the jury, as matter of law, the plaintiff cannot recover in this action; and we so instruct you. The verdict should be for the defendant.
I am requested by the plaintiff's counsel to charge you:
1. That the deceased had a right, under the evidence in the case, to be upon the passenger platform at Nicholson.
Answer: That point we affirm.
2. If the injury done to Mr. Bacon was the result of carelessness and negligence on the part of the defendant, without fault on the part...
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